Suspect FMLA leave abuse? Tread carefully

Employees who take intermittent FMLA leave can often cause real problems for employers because they take time off so sporadically.

But sometimes you may detect a pattern that indicates the employee might be abusing authorized intermittent leave. Can you fire him?

That depends. Do you want to risk an FMLA interference lawsuit and a potentially expensive jury verdict?

Essentially, employers that reasonably suspect an employee is abusing intermittent FMLA leave won’t be liable for interfering with the FMLA leave even if the suspicion is wrong. Nevertheless, that’s a question for a jury to decide. Employers that want to argue they had a reasonable suspicion the employee was cheating should be prepared to introduce concrete evidence supporting that suspicion.

One example of such evidence: surveillance tapes showing the employee engaging in activities inconsistent with his claimed illness.

He used more than 65 intermittent FMLA days in three months. Suspicious Millard might be abusing the leave, Burlington fired him. He sued.

It turned out that several of the absences might not have been directly related to asthma flare-ups. One was for a doctor’s visit to work on a plan to reduce asthma incidents. Several occurred when Millard’s baby sitter was unavailable and he couldn’t find a substitute who knew how to handle an asthma attack.

The court said a jury should sort out whether Millard was entitled to FMLA leave and whether the employer had a reasonable suspicion that he was abusing leave. (Millard v. BNSF Railway, No. 08-C-3752, ND IL, 2009)

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